How Bad Is the Hobby Lobby Ruling?

Dr. Emma Long is a Lecturer in American Studies (History and Culture) at the University of East Anglia.

The furious reaction to the Supreme
Court’s ruling
in Burwell v. Hobby Lobby, the final case handed down before
the Court ended its term on Monday June 30, reveals in stark fashion
the variety of issues directly or indirectly raised by the case.
While on the surface, Hobby Lobby involved only questions of
religious freedom, and possibly the extent to which the Court was
willing to extend rights to corporations in light of its 2010
Citizens United ruling, the response has highlighted the
extent to which issues of contraception and abortion, sexual freedom
and choice, women’s rights, gay rights, racial discrimination, and
the role of the federal government were all implicated in this case.
It has also made clear again, if anyone had forgotten, the extent to
which these issues still have the power to divide the American
public.

The problem is that in the rush to
praise the majority for upholding religious liberty, lambast the
Justices for their apparent indifference to the rights of women, or
predict the dire consequences for the future, some of the nuance of
the Court’s opinion has been overlooked. In the long run, the
skeptics and critics may be right, and this may prove to be a
terrible step toward the parade of horribles currently being offered
up by the Court’s critics, but it may not. Yes, there are some
potentially uncomfortable principles lying in the words of the
majority, but they have not come into effect yet, and they may not.
The New York Times’ Adam Liptak noted
the Roberts Court’s “inclination toward nominally incremental
rulings with vast potential for great change” which appears
particularly apt in the case of Hobby Lobby. Put another way,
“a dangerous precedent has been set” (ACLU e-mail to members on
June 30) but, crucially, “the apocalypse didn’t come” (Mark
Joseph Stern at
Slate) … at least not yet.

For anyone not familiar with the case,
Burwell v. Hobby Lobby involved challenges to the section of
the Patient Protection and Affordable Care Act which requires
companies with fifty or more employees to provide those employees
with a minimum level of health insurance coverage, including access
to FDA-approved contraception. More than sixty lawsuits were filed
across the US arguing that the contraceptive mandate violated the
religious beliefs of the owners of companies like Hobby Lobby,
Mardel, and Conestoga Wood Specialties, the three at issue in this
case, by requiring owners to pay for insurance which covered forms of
contraception to which they object on the grounds of their religious
beliefs. As presented then, Hobby Lobby asked whether
for-profit corporations run by religious owners who claim to run
their businesses according to their religious principles should be
granted an exemption from the contraceptive mandate on the grounds of
religious freedom.

The Court, in a 5 to 4 decision, with
the Court’s conservatives in the majority and liberals in dissent,
ruled that, yes, the contraceptive mandate violated the religious
freedom of the owners of Hobby Lobby and corporations like it, and
that, as a result, the mandate could not be applied to them. But
this is only the headline and, as anyone who has spent any time
studying the Court knows, the devil is in the details.

The majority first argues that
corporations can come within the meaning of “person” in the
Religious Freedom Restoration Act (RFRA), a 1993 law which requires
substantial protection for religious freedom. After Citizens
United this is perhaps not surprising. Arguably more surprising
is the tenuous nature of the argument: this is not the bold statement
of corporate rights of Citizens United. Rather than stating
directly that corporations are people, Justice Samuel Alito’s
majority opinion skirts the issue by arguing that “when rights …
are extended to corporations, the purpose is to protect the rights of
the people” who formed them. In other words, forget that we’re
talking about corporations here, and think of it more as protecting
the rights of people who happened to form a corporation. Protecting
individual religious liberty may be less politically divisive than
protecting the religious rights of businesses but the argument here
is disingenuous at best, deflecting attention from the application of
the decision. Additionally, the corporate form is used to create a
legal separation between the owners and the company itself, to
protect them from any liabilities incurred. If owners
are protected against the liabilities then surely the company
cannot benefit from rights accrued by the owners? Except this
appears to be what the majority opinion asserts and which is rightly
one target of the dissenters’ ire.

Despite seemingly rewriting corporate
law, however, the claims of critics that the ruling will permit all
corporations with religious owners to claim extensive religious
exemptions from laws they do not like (including anti-discrimination
legislation) is at the very least premature. The majority took pains
to point out that the decision applied only to “closely-held
corporations” (defined by the IRS as companies where 50% of the
stock is directly or indirectly owned by five or fewer individuals)
and did not involve either non-profits or larger corporations. While
Hobby Lobby may well give such organizations hope of finding a
receptive majority on the Court, the extension of the ruling to them
is by no means certain and will have to wait for other litigation
currently working through the courts.

The majority’s second holding, that
the contraceptive mandate imposes a “substantial burden” on the
religious rights of owners, and thus their corporations, by requiring
them to provide insurance coverage for contraceptive methods they
hold incompatible with their religious beliefs, legitimately raises
the question of what other exemptions religious belief might be used
to obtain. As the dissenters ask, would it apply to other medical
procedures such as blood transfusions or vaccinations? And beyond
that, would it permit discrimination on the grounds of race, sex, or
sexual orientation? Depending on how you read the majority’s
answer, the ruling is either reassuring or deeply troubling.

The ruling clearly moves the Court
further down its path of greater protection for religious belief, a
direction indicated by decisions in Town of Greece v. Galloway
and others. But how far the Court may be willing to go is not clear
from the Hobby Lobby ruling. The majority expressly notes
they were dealing only with the contraceptive mandate and that other
practices or procedures will have to stand or fall on their own
merits. And here is the problem: it does not definitively foreclose
the possibility of such challenges. While the majority make quite
clear that racial discrimination would not be tolerated on religious
grounds, discrimination on the grounds of sex or sexual orientation
are not discussed. Vaccinations are noted, but not blood
transfusions, and then only with the argument that different
interests “may” support their continuation over religious
objections.

Does this mean that more religious
challenges will come forward in these areas? Probably. Especially
as conservative religious organisations seem intent on using
religious freedom as a way to challenge laws to which they object.
Does it mean that the Court will support them? Not necessarily. The
presence of some examples in the opinion does not suggest others are
fair game, especially when the author repeatedly notes the narrowness
of the opinion. Equally, Kennedy’s brief but pointed concurrence
suggests that contraception may be the limit to his tolerance for
such arguments. It certainly seems unlikely that the man who wrote
of respect for same-sex relationships in such sweeping language in US
v. Windsor only last year would vote to allow anti-gay
discrimination, even on religious grounds. The other side of that
argument, however, suggests there may be four Justices on the Court
who might uphold religious liberty rights against claims of
discrimination on these grounds, and that is a discomforting thought.
However, those who argue that the Court has already accepted
such discrimination go too far in their criticism of the Hobby
Lobby ruling.

The most pointed criticism has come
from commentators who assert that the Court’s ruling represents at
best an anti-female sentiment on the Court and at worst a war on
women’s rights. Given the overall image of companies being able to
enforce decisions which have an impact on the lives of their female
employees in such an intimate area such a reading has merit. But
such unqualified statements are themselves problematic in light of
statements from the majority.

First, the majority’s acceptance of
the fact that protecting women’s health constitutes a compelling
government interest should give pause to those who want to argue
Hobby Lobby constitutes a war on women. It might have been
brief, and maybe even grudging, but it was nevertheless accepted.

Second, and somewhat overlooked in the
recent debate, is the majority’s early statement that, “The
effect of the HHS-created accommodation on the women employed by
Hobby Lobby and the other companies involved in these cases would be
precisely zero.” The Obama Administration’s compromise with
religious non-profits permits them to exempt themselves from covering
contraception while ensuring women continue to obtain coverage
through arrangements with insurance companies. The majority’s
assumption that such an arrangement could be extended to companies
like Hobby Lobby might potentially be wrong, its constitutionality is
currently being challenged
in the courts, but it’s difficult to ignore the fact that this
appears to have played a major role in the majority’s reasoning.
Leaving women without contraceptive coverage does not appear to have
been the Court’s intention, contrary to some recent claims. If
religious non-profits successfully challenge the exemption, or if the
work-around cannot be extended to companies like Hobby Lobby, then
the worst fears of the ruling’s critics may yet come to pass, but
again, it has not happened yet.

There are many reasons to be concerned
about the Court’s Hobby Lobby decision. It extends
religious freedom rights further than before, with the possibility
that protection of those rights may harm others. It does not
foreclose the possibility that religious believers may challenge
other laws on religious grounds (including important
anti-discrimination legislation) and potentially implies in some
cases believers will find a sympathetic ear in some of the Justices,
perhaps encouraging such challenges. It raises the possibility that
a large number of women will be left without contraceptive coverage,
either because alternative options prove unworkable or burdensome, or
because women will be unable to afford the additional costs involved.
And it extends the Court’s rulings on the rights of corporations
into civil liberties jurisprudence, suggesting Citizens United
was not an aberrant decision. But at the moment the fact is that
these remain future possibilities, not guaranteed outcomes. The
apocalypse might be close, but it’s not here yet.